The Magic of Mushrooms: Turning “Public Enemy Number One” Into an Ally to Help Put an End to the War on Drugs

by Thomas Kemmet, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

The exhaustive half-century “war on drugs” might at last come to a ceasefire.¹ In June 1971, President Richard Nixon initiated the “war on drugs.”² He declared drugs to be “Public Enemy Number One” beginning an onslaught of measures enacted against them.³ This “war” has cost Americans more than $1 trillion in its fifty-year duration.⁴ Although there is a long road ahead to a unified national resolution, the end of the war is on the horizon. States have led strong counter-offensive campaigns to put an end to this costly war. The state-led initiatives began with the decriminalization and legalization of marijuana.⁵ Many states began to recognize the invaluable benefits of marijuana from its medicinal to economic and social significance.⁶ This has opened the door to investigate and reopen decades-old research on the potential health benefits and value of other banned drugs.⁷ One such drug is that of psilocybin mushrooms, more commonly known as “magic mushrooms.”⁸ In 2020, Oregon trailblazed the way in not only decriminalizing magic mushrooms and legalizing it for medicinal use but also decriminalizing all drugs.⁹ Oregon’s precedent has caught wind and many other cities and states have since moved to decriminalize magic mushrooms and legalize them for therapeutic use.¹⁰ The legalization of psilocybin mushrooms at the state level will be another significant battle won in ending the “war on drugs.”¹¹

In part II, this article will explain the U.S. policy on drugs regarding the Substance Control Act and its cost in enforcement. Next it will briefly discuss the recent transition to more lax state policies and statutes regarding drugs, especially marijuana. The article will then explain the groundbreaking Oregon legislation legalizing psychedelics. Finally, in part III, the article will explore the impact of Oregon’s statute in ending the “war on drugs.”

II. Background

A. The War on Drugs

The United States trajectory opposing drug use began just a year prior to Nixon’s infamous declaration of war on drugs.¹² In 1970, Richard Nixon approved and signed the Controlled Substances Act (“CSA”).¹³ Section 812(a) of the CSA designates drugs into five Schedules.¹⁴ The Schedules are explained in CSA Section 812(b), such that each proceeding schedule becomes less dangerous and abusive.¹⁵ In other words, Schedule I drugs are deemed to be the most threatening with a high potential for abuse and minimal medical benefits, whereas Schedule V drugs have a low potential for abuse and are currently utilized in medical practice.¹⁶ Schedule I drugs include Tetrahydrocannabinols (marijuana), psilocybin (magic mushrooms), and 3,4-methylenedioxy amphetamine (ecstasy).¹⁷ Moreover, this act became the very foundation for the fifty-year campaign against drug use in the United States.

In pursuit of this war on drugs President Nixon enforced stricter measures for drug crimes which included mandated prison sentences and a drastic increase in federal funding for drug-control agencies to help combat its flow and use in the United States.¹⁸ In 1973, to aid in the war, Nixon established the Drug Enforcement Agency (“DEA”) as a special task force commissioned to eliminate illegal drug consumption, entry, and sale in the United States.¹⁹ At its infancy the DEA was a small group of less than 3,000 agents with a budget of only $65 million.²⁰ Today it consists of roughly 10,000 agents with a budget of over $3 billion.²¹

Moreover, the costs of the war can be seen with the enforcement of these harsh drug policies. One-fifth of the entire incarcerated population––roughly 400,000 people––in the United States are serving sentences for drug charges, which does not even include people on probation or parole.²² Additionally, police arrest more than one million people a year on drug charges.²³. It is estimated that the federal government spends about $3 billion annually to incarcerate people on drug-related charges.²⁴ Likewise, state governments are estimated to spend $7 billion on drug-related charges.²⁵ Thus, total expenditures for drug offenses eclipse $10 billion a year.²⁶ The sheer price tag of the war alone is alarming, but more importantly the social ramifications are even more disquieting.²⁷ Of the estimated 400,000 people serving prison sentences for drug offenses, nearly 60% of all people incarcerated in state prisons and 80% incarcerated in federal prisons are either Black or Latino.²⁸ Thus, the “war on drugs” has prompted and exacerbated racial inequality in the United States.²⁹

Based on these statistics alone it is clear that the war has taken a toll on both the American economy and society over the last fifty years.³⁰ Moreover, with these staggering numbers taken into account as well as all other aspects of the drug enforcement policies, it is estimated that the United States has spent over $1 trillion since the “war on drugs” began.³¹ This astronomical cost, limited success, and its underlying racial impact have caused citizens to grow weary of the “war.”³²

B. The Gateway Drug: The Turning Point In The “War on Drugs” with the Decriminalization and Legalization of Cannabis

A major sign of U.S. citizens’ frustration with and desire to diminish the war against drugs was seen in 2012.³³ In 2012, Colorado and Washington became the first two states to legalize the recreational use of marijuana, a Schedule I drug.³⁴ The groundbreaking legislation was a catalyst for sweeping changes regarding the legality of marijuana across the fifty states.³⁵ Over the last decade, seventeen other states and the District of Columbia have fully legalized the recreational use of marijuana.³⁶ Additionally, nine states have fully decriminalized low level marijuana possession charges as well as legalized its medicinal use.³⁷ In other words, possession and use of marijuana remains illegal in only five states.³⁸ The remaining states have decriminalization statutes, medicinal marijuana statutes, or legality of CBD use.³⁹

Moreover, it is clear that the public opinion on the use of marijuana has shifted drastically from the beginning of the “war” to present day.⁴⁰ A little over fifty years ago only twelve percent of the population supported the legalization of marijuana.⁴¹ Today, it is estimated that over fifty percent of the population supports its legalization.⁴² The drastic transformation in public opinion is a result of a wide array of perceived and studied benefits that result from cannabis legalization.⁴³ People most often refer to the medical benefits of marijuana such as it being a stress relief, pain relief, or sedative to help people sleep.⁴⁴ Many others focus on the economic incentives such as the state’s ability to tax the sale of marijuana––generating state revenue, the creation of jobs, investment opportunities, and decreased government spending on enforcement and incarceration.⁴⁵ Some also point to the social benefits such as the disproportionate share of minority communities that will no longer be mass incarcerated for marijuana use or possession, the decrease in teen usage, and the fact that it is statistically safer than alcohol consumption.⁴⁶ Overall, the view on drugs in the United States has shifted quickly over the past ten years since the legalization of marijuana, which has paved a significant path to end the war on drugs and opened the door for the potential legalization of other substances.⁴⁷

C. The Pioneers: Oregon’s Statute Legalizing Magic Mushrooms and all Other Drugs

In 2020, with the coronavirus looming large and the historic and highly politicized presidential election underway, the “war on drugs” biggest defeat was swept under the radar.⁴⁸ However, amidst all the controversy the State of Oregon passed with a substantial majority, two trailblazing statutes that not only legalized the therapeutic use of magic mushrooms–with Measure 109–but also decriminalized all drugs–with Measure 110.⁴⁹

Measure 110 was enacted under Senate Bill 755.⁵⁰ Senate Bill 755 essentially re-categorized the charge for personal possession of a Schedule I-IV drug from a sentence of one year in jail with a potential fine of up to $6,250 to only a $100 fine or the completion of a health assessment.⁵¹ However, the law still holds the manufacturing, commercial transactions, and large possession of schedule I-IV drugs (with the exceptions of marijuana and magic mushrooms) to criminal liability.⁵² Furthermore, the measure established treatment/recovery programs and facilities for those who need or want access to help without having to worry about potential criminal consequences.⁵³ The people of Oregon found the solution to the war on drugs of imposing criminal punishment for those addicted to drugs to be inhumane, unnecessarily expensive, and largely inefficient at actually helping those recover and fight their addictions.⁵⁴ Therefore, the measure was adopted to reduce criminal punishment for addictions and instead adopt a more health minded approach to help curtail drug use.⁵⁵

Measure 109 was codified under the various provisions of Chapter 475A––Psilocybin Regulation––of the Oregon Revised Statutes.⁵⁶. The fundamental component of this was the legalization of psilocybin mushrooms.⁵⁷ The measure legalized the creation, delivery, sale, and use of magic mushrooms to those properly licensed.⁵⁸ Moreover, the adoption of Measure 109 did not freely legalize the recreational use of magic mushrooms, but rather legalized it for therapeutic use.⁵⁹ Thus, the measure authorized the Oregon Health Authority to establish a program in which they can provide licenses to mental health professionals to administer and facilitate the use of magic mushrooms for adults over the age of twenty-one.⁶⁰. The justification for passing such a resolution was the significant health benefits the use of psilocybin mushrooms can have on aiding mental health.⁶¹ Numerous studies in the United States and abroad, as well as clinical evidence from the Federal Drug Administration, have proven the effectiveness and safety in the use of psilocybin to treat mental illnesses like depression, anxiety, and post-traumatic stress disorder (“PTSD”).⁶² The adoption and codification of Measure 109 in legalizing the therapeutic use of psilocybin mushrooms could prove to be crucial in ending the war against drugs.

III. Discussion

Although Oregon’s Measure 110 proved to be a substantial blow to the “war on drugs,” its impact on actually ending the war on drugs has yet to materialize.⁶³ The decriminalization of all drugs does not appear to have gained significant influence in other states just yet.⁶⁴ It may be a few more years and require substantially more research into the matter, before other states follow in Oregon’s footsteps.⁶⁵ However, it has put the conversation on the table for several advocates and legislatures.⁶⁶

The more crucial element of Oregon’s drug policy in ending the “war on drugs” was the medicinal legalization of magic mushrooms. Despite this measure only focusing on the legalization of one drug compared to the decriminalization of all drugs, such a solution is more tenable, preserves the momentum of Americans in reevaluating the “war on drugs,” and fosters a more positive mindset on drugs generally. This is because, contrary to the decriminalization of all drugs, there is a vast amount of research on the benefits of psilocybin mushrooms.⁶⁷ For instance, prior to the “war on drugs” in the 1970s, psychedelics such as psilocybin and LSD were the focus of thousands of research projects.⁶⁸ The studies revealed significant improvements in patients who suffered from mental illnesses.⁶⁹ Despite significant progress in testing and research it was quickly stifled.⁷⁰ These substances became associated with hippies and African Americans, spurring the ongoing “war on drugs.”⁷¹

However, with the legalization of marijuana, studies into the benefits of other drugs were reignited.⁷² In recent years, research and studies regarding psychedelics such as psilocybin have resurged.⁷³ For example, in 2018 the Food and Drug Administration named psilocybin a “break-through therapy” for treatment of severe depression. Additionally, many other studies have followed suit finding that psychedelics have significant benefits in treating mental health disorders such as depression, anxiety, anorexia, chronic pain, PTSD, obsessive compulsive disorder, and others.⁷⁴

Furthermore, with Oregon’s adoption of Measure 109, the benefits of magic mushrooms were brought to the forefront of public attention fostering more research and calls for state and local government action.⁷⁵ In the past couple years cities such as Ann Arbor, Denver, and Seattle have all decriminalized the possession of psychedelic substances such as mushrooms.⁷⁶ Additionally, some state governments have signed legislation to help foster clinical studies in researching the therapeutic use of psychedelics for mental disorders.⁷⁷ Governors in states like Texas, Connecticut, and Maryland enacted bills that would enable state-funded psychedelic research as well as clinical studies to be conducted in their respective states, specifically on veterans suffering from PTSD.⁷⁸

Importantly, Oregon’s precedent has fostered states in drafting similar measures to try and legalize the therapeutic use of magic mushrooms.⁷⁹ For instance, in November of 2022, Colorado constituents voted on and approved a bill called the “Natural Medicine Health Act.”⁸⁰ This act legalized the personal use of natural psychedelics including magic mushrooms.⁸¹ The bill enables psilocybin therapy centers to be established and operate the use of magic mushrooms in therapy sessions under the supervision of a professional for people with mental illnesses over the age of twenty-one.⁸². Similarly, New Jersey has drafted the Psilocybin Behavioral Health Access and Services Act, which would legalize the possession and cultivation of magic mushrooms.⁸³ The bill further permits the creation of psilocybin clinics to facilitate and administer the use of magic mushrooms in therapy sessions for people over the age of twenty-one.⁸⁴ A third state initiative can be seen with California’s Senate Bill 519.⁸⁵. The California bill would decriminalize the personal use of psychedelics like magic mushrooms.⁸⁶ Unlike the Oregon statute it does not explicitly enable the establishment of psilocybin therapy centers.⁸⁷ However, it does permit the supported and facilitated use of psychedelic drugs, which appears to endorse future legislation in establishing psilocybin therapy clinics.⁸⁸

These bills cite to many of the same justifications for legalizing magic mushrooms focusing on the health and economic benefits.⁸⁹ Therefore, it is only a matter of time before more states begin to adopt similar measures to the ones above.⁹⁰ Oregon’s statutes not only helped in legalizing the medicinal use of magic mushrooms but has more importantly provided another significant victory to ending the war on drugs.⁹¹ The legalization of medicinal magic mushrooms has further made the country aware of the harsh realities of our current drug policy from its inefficiency to its vast expense. Thus, Oregon’s statutes will help to foster more thought and consideration into the potential benefits of other drugs and need for reform of the current policy.⁹² In turn, just like the impact from the legalization of marijuana, the legalization of magic mushrooms will further promote and incentivize more research regarding the banned substances of the CSA in search of other potential benefits.⁹³

IV. Conclusion

The “war on drugs” is slowly beginning to wind down in the United States. After spending over a $1 trillion waging an unwinnable war,⁹⁴ American’s mindset on the current policies are shifting.⁹⁵ Americans are becoming more aware of the need to amend the current drug policies in the United States.⁹⁶ States like Oregon have embodied this mindset and are pioneering the United States into a more liberal stance on drugs. Oregon’s legalization of magic mushrooms was another significant step in promoting this open-minded attitude toward drugs. Not only will many states soon follow in Oregon’s footsteps making another Schedule I drug legal (as Colorado just did),⁹⁷ but it will incentivize future research and provoke more thought into the potential benefits of legalizing other banned substances. This in turn may lead to the legalization or decriminalization of many more, if not all banned substances. Thus, Oregon’s legalization of magic mushrooms was another massive victory in ending the “war on drugs.”

Cover Photo by Janine on Flickr licensed under CC BY 2.0

Thomas Kemmet

Thomas Kemmet is originally from Long Island, New York. He graduated from The Ohio State University with a B.S in Political Science and a minor in both Italian and Economics. Prior to law school, Thomas worked in the corporate insurance industry for two years. In his free time, Thomas enjoys being active playing sports, hiking, or traveling the world. He is especially interested in legal issues pertaining to sports and entertainment, the protection of the environment, as well as business enterprises.

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